COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NO. 02-16-00468-CV
IN THE MATTER OF D.W.
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FROM THE 323RD DISTRICT COURT OF TARRANT COUNTY
TRIAL COURT NO. 323-103885-16
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MEMORANDUM OPINION1
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The trial court adjudicated Appellant D.W. delinquent for the felony offense
of aggravated assault with a deadly weapon and, after a disposition hearing,
ordered her committed to the Texas Juvenile Justice Department for an
indeterminate sentence.
D.W.’s court-appointed appellate attorney has filed a motion to withdraw as
counsel and a brief in support of that motion, averring that after diligently
reviewing the record, he believes that this appeal is frivolous. See Anders v.
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See Tex. R. App. P. 47.4.
California, 386 U.S. 738, 744‒45, 87 S. Ct. 1396, 1400 (1967). The brief meets
the requirements of Anders by presenting a professional evaluation of the record
and demonstrating why there are no arguable grounds to be advanced on
appeal. Although given the opportunity, D.W. did not file a response, and the
State did not submit a brief.
Once an appellant’s court-appointed attorney files a motion to withdraw on
the ground that the appeal is frivolous and fulfills the requirements of Anders, this
court is obligated to undertake an independent examination of the record. See
Stafford v. State, 813 S.W.2d 503, 511 (Tex. Crim. App. 1991); Mays v. State,
904 S.W.2d 920, 922–23 (Tex. App.—Fort Worth 1995, no pet.). Only then may
we grant counsel’s motion to withdraw. See Penson v. Ohio, 488 U.S. 75, 82–
83, 109 S. Ct. 346, 351 (1988).
Having carefully reviewed the record and the Anders brief, we agree that
this appeal is frivolous. We find nothing in the record that might arguably support
D.W.’s appeal. See Bledsoe v. State, 178 S.W.3d 824, 827 (Tex. Crim. App.
2005). Therefore, we affirm the trial court’s judgment.
Ordinarily, upon finding that the appeal is frivolous, we would grant
counsel’s motion to withdraw. But in In re P.M., a termination of parental rights
appeal, the supreme court held—in reliance on family code section 107.013,
which provides that appointed counsel continues to serve in that capacity until
the date all appeals are exhausted or waived—that the mere filing of an Anders
brief in the court of appeals does not warrant the withdrawal of that counsel for
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purposes of proceeding in the supreme court. 520 S.W.3d 24, 26‒27 (Tex.
2016). The Juvenile Justice Code contains a similar provision: when, as in this
case, the trial court finds a child’s family indigent and appoints counsel, that
counsel must continue to represent the child “until the case is terminated, the
family retains an attorney, or a new attorney is appointed by the juvenile court.”
Tex. Fam. Code Ann. § 51.101(a) (West Supp. 2016). The record does not show
that either of the latter two events have occurred here, and under the reasoning
in P.M., this case has not “terminated” because not all appeals have been
exhausted. See 520 S.W.3d at 26‒27. Accordingly, even though we have
affirmed the trial court’s judgment, we deny counsel’s motion to withdraw. See
In re A.H., No. 02-16-00320-CV, 2017 WL 1573735, at *1 (Tex. App.—Fort Worth
Apr. 27, 2017, no pet.) (holding similarly).
/s/ Bill Meier
BILL MEIER
JUSTICE
PANEL: WALKER, MEIER, and GABRIEL, JJ.
DELIVERED: October 26, 2017
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